Bush v. Dobbs et al

Filing 27

ORDER FOR SERVICE OF PROCESS upon RN Stephens and Phil Martin, GRANTING IN PART AND DENYING IN PART 21 Plaintiff's motion for leave to file an amended complaint, and GRANTING 25 Plaintiff's "Motion for Emergency Awareness." Th e Clerk of Court is DIRECTED to re-file Plaintiff's motion for leave to file an amended complaint (Doc. 21) as the First Amended Complaint, with Plaintiff's "Motion for Emergency Awareness" (Doc. 25) as an attachment. The Clerk is further DIRECTED to reinstate P. Martin as a Defendant on the docket but to RENAME him as Phil Martin, to ADD RN Stephens to the docket as a Defendant, and to RENAME Defendant "Dietary Supervisor Hill" as Justin Hill. Signed by Magistrate Judge Mark A. Beatty on 5/9/2024. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KEELAN R. BUSH,
Plaintiff,
vs.
JUSTIN HILL,1
Defendant.

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Case No. 3:23-CV-2975-MAB

MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
This matter is currently before the Court on Plaintiff’s motion for leave to file an
amended complaint (Doc. 21) and Plaintiff’s “Motion for Emergency Awareness,” in
which he submits an additional page that he wants to make part of his proposed amended
complaint (Doc. 25). For the reasons explained below, Plaintiff’s request to amend his
complaint is granted in part and denied in part.
BACKGROUND
Original Complaint
In his original complaint, Plaintiff named warden Rachel Dodd, health care
administrator (“HCUA”) Phil Martin, dietary supervisor Justin Hill, and Dr. Babish (Doc.
1; see also Doc. 13). Plaintiff alleged that he has Type 1 Diabetes but struggles to keep his
blood sugar in check because of the type of meals served at Robinson, which includes

The Clerk of Court is DIRECTED to modify the docket to reflect Defendant Hill’s full and correct name.
“Dietary Supervisor Hill” should be RENAMED “Justin Hill.”
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daily helpings of beans, rice, pasta, potatoes, and/or white bread (Doc. 1, p. 20). Dietary
supervisor Mr. Hill told Plaintiff that there were no alternative diet options for diabetics
at Robinson and that the therapeutic manual guide provided by the IDOC did not require
any special foods to be made available to diabetics (Id. at p. 20, 40).
Plaintiff alleged that HCUA Martin told him that Dr. Babish ordered a “low
concentrated sweet diet with [a] bedtime snack bag” (Doc. 1, p. 21; see also id. at pp. 8, 13–
15). But Plaintiff said that while he gets the bedtime snack bag, dietary was not providing
him with the low concentrated sweet diet (Id.). Plaintiff alleged that HCUA Martin and
Mr. Hill were in “co-hoots” to prevent him from receiving a special diet (Id.).
Plaintiff alleged that on August 7, 2023, he saw a new doctor (Dr. Becker), who
told him that his A1C was still extremely high (Doc. 1, p. 22). The doctor raised his insulin
and put in an order to dietary to give Plaintiff a p.m. salad, but dietary staff ignored the
order (Id.). On August 17, Plaintiff spoke to Mr. Hill about the doctor’s order for a salad
and Mr. Hill stated that Plaintiff was not going to get a salad because the therapeutic diet
manual did not say to give diabetics salads (Id.). Plaintiff alleges that Mr. Hill also
contacted the healthcare unit and cancelled the doctor’s order for a p.m. salad (Id.).
Plaintiff said he received a slip in the mail on August 18th indicating that the salad order
had been canceled (Id.).
The Court reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and
allowed him to proceed on an Eighth Amendment claim for deliberate indifference
against Mr. Hill based on his allegations that Hill refused to provide the special diets
ordered by the prison physicians (Doc. 13, p. 4). The Court determined, however, that
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Plaintiff failed to state a claim against HCUA Martin, Dr. Babish, and Warden Rachel
Dodd (Id.). Specifically, Plaintiff failed to allege any facts that supported his allegation
that HCUA Martin was in cahoots with Mr. Hill or that Martin was otherwise
participating in the denial of Plaintiff’s special diet (Id.). With respect to Dr. Babish, there
were no allegations to suggest that he refused the medically indicated diet or was
deliberately indifferent to Plaintiff’s medical needs (Id.). And Plaintiff did not make any
allegations at all against Warden Dodd (Id.).
Before Defendant Justin Hill appeared in the case, Plaintiff filed the instant motion
for leave to amend his complaint (Doc. 21; see also Doc. 22). Defendant Hill then appeared
and filed his answer, but did not file a response to Plaintiff’s motion for leave to amend
(Doc. 22).
Proposed Amended Complaint
In the proposed amended complaint, Plaintiff names Warden Rachel Dodd,
HCUA Phil Martin, dietary supervisor Justin Hill, Dr. Babish, and RN Stephens as
Defendants (Doc. 21, pp. 1, 2). Plaintiff repeats all of the allegations from his original
complaint and asserts the following new allegations. He alleges that on August 18, 2023,
he received in the institutional mail the pink carbon copy of form indicating that the salad
order made by Dr. Becker had been canceled (Doc. 21, pp. 45). The form was signed by
RN Stephens (Id. at p. 44; see also id. at p. 45). Three days later, Plaintiff asked Nurse Zak
Abraham about the cancelation order (Id. at p. 45). Nurse Abraham asked to borrow
Plaintiff’s pink copy of the cancelation order so that he could ask Dr. Becker about it (Id.).
The next morning Nurse Abraham told Plaintiff that Dr. Becker “didn’t know anything
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about the cancelation order” (Id.). Nurse Abraham did not give Plaintiff back the pink
slip but promised to get Plaintiff a copy of the original cancelation order that should have
been in his file (Id.).
About a month later, Nurse Abraham gave Plaintiff a copy of the original salad
order written by Dr. Becker on August 7, 2023 (Doc. 21, p. 45). At the bottom of the order,
“*cancelled*” was written without any further explanation (Id. at p. 46; see also id. at p.
55). Plaintiff asked about the pink copy of the cancelation order that he previously gave
Nurse Abraham, and Nurse Abraham told him that RN Stephens had gotten a hold of it
and shredded it because she was not supposed to have written it in the first place (Id. at
p. 46). Plaintiff was later told by a different nurse that RN Stephens wrote the cancelation
order dietary supervisor Mr. Hill called her and told her to do so (Id. at p. 44, 46). Plaintiff
has asked the medical records department at Robinson for a copy of the cancelation order
but has never received one, which leads him to believe his records have been tampered
with and that RN Stephens truly did shred the order (Id. at p. 47).
Plaintiff then alleges that he was incarcerated in the IDOC in September 2018 but
did not receive much education on managing his diabetes and he ate what the IDOC
served him (Doc. 21, p. 48). In May 2022, he was hospitalized “as a result of eating the
foods the [IDOC] was feeding me” and diagnosed with pancreatic ketoacidosis (Id.).
Plaintiff has asked the medical records department at Robinson several times for a copy
of the hospital records, but has not received anything (Id.). Plaintiff says that “the hospital
report was a 109 pages in its seriousness” and “with that long of a hospital doctors
report,” he “know[s] that some orders are not being honored by this Health Care and
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Department” (Id.).
Plaintiff alleges that HCUA Phil Martin “is in denial about doctors orders and
what the [IDOC] is feeding diabetics” (Doc. 21, p. 48). Specifically, Plaintiff submitted a
grievance in September 2023 indicating that, on August 7, 2023, Dr. Becker entered an
order for p.m. salads, but the order was ignored by dietary and then improperly canceled
by a nurse at the direction of the dietary supervisor. Martin was contacted for a response
to Plaintiff’s grievance and told the counselor that, “[o]n 8-4-23, Dr. Becker’s Therapeutic
Diet Order . . . has a low concentrated sweets/snack ordered. Nothing documented for
PM salads” (Id. at pp. 66, 68). Martin reiterated the same thing to the grievance officer
and also said that he pulled Plaintiff’s commissary purchase list and sent a copy to Dr.
Becker and the director of nursing “to review” (Id. at p. 68).
Plaintiff alleges that Martin’s response to his grievance was totally bogus (Doc. 21,
p. 50). Plaintiff says he never saw Dr. Becker on August 4th and Martin “made up” that
date (Id.; see also id. at pp. 8, 15 (previous grievance responses in which Martin indicated
that “Dr. Babich ordered a low concentrated sweet with bedtime snack diet on 10/17/22
for 12 months”)). Plaintiff also says that Martin ignored the August 7th order for P.M.
salads, which Plaintiff knows was in his master file because that is where he got his copy
of the order (Id. at p. 50). Plaintiff further alleges that it was improper for Martin to pull
his commissary purchase list and implies that Martin did so in an effort to suggest that
Plaintiff was buying things incompatible with a recommended diabetic diet and divert
attention from and/or cover up that a doctor’s dietary order was not being honored and
had been improperly canceled (Id. at pp. 48–49, 50).
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DISCUSSION
The Federal Rules of Civil Procedure instruct that leave to amend should be freely
given when justice so requires. FED. R. CIV. P. 15(a)(2). District courts can deny leave to
amend “where there is undue delay, bad faith, dilatory motive, repeated failure to cure
deficiencies, undue prejudice to defendants, or where the amendment would be futile.”
Mulvania v. Sheriff of Rock Island Cty., 850 F.3d 849, 855 (7th Cir. 2017) (citation omitted).
The Amended Complaint is also subject to review under 28 U.S.C. § 1915A,2 therefore,
the Court will screen the proposed Amended Complaint in accordance with this statute
while considering Plaintiff's motion for leave to amend.
The Court once again finds that Plaintiff has failed to state a claim against Dr.
Babish and Warden Dodd. Plaintiff did not allege any new allegations about Dr. Babish;
he simply repeated the allegations from his original complaint that Dr. Babish ordered
the low concentrated sweet diet for him (see Doc. 21, Doc. 1). As the Court previously
said, however, these allegations do not suggest that Dr. Babish refused the medically
indicated diet or was deliberately indifferent to Plaintiff’s medical needs (Doc. 13, p. 4).
As to Warden Dodd, Plaintiff still did not include any allegations against her (see Doc. 21;
see also Doc. 13, p. 4), and Dodd does not appear to be the Warden who handled and
signed off on Plaintiff’s grievances (see Doc. 21, pp. 53, 62, 68). Dodd cannot be held liable
simply as the warden who oversees employees because supervisory liability does not

Pursuant to Section 1915A, any portion of the Amended Complaint that is legally frivolous or malicious,
fails to state a claim for relief, or requests money damages from an immune defendant must be
dismissed. 28 U.S.C. § 1915A(b).
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apply to actions under Section 1983. See Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008).
For these reasons, the motion for leave to amend is denied to the extent Plaintiff was
attempting to reinstate Dr. Babish and Warden Dodd as Defendants.
With respect to RN Stephens, Plaintiff alleges that RN Stephens wrote and issued
an unauthorized order in Dr. Becker’s name canceling the previously issued dietary order
for salads. Plaintiff further alleges that RN Stephens then tried to cover up her misdeed
by removing the cancellation order from his medical file and destroying all copies of the
order. These allegations are sufficient to state an Eighth Amendment claim that RN
Stephens was deliberately indifferent to his serious medical needs by participating in the
effort to deny him special diabetic dietary accommodations.
As for Phil Martin, Plaintiff alleges that Martin failed to adequately investigate
Plaintiff’s claims that Dr. Becker’s salad order was ignored by dietary and improperly
canceled by a nurse. Martin instead provided a false statement about Plaintiff’s medical
record, which was then used to deny Plaintiff’s grievance and led to the continued
deprivation of the physician-ordered dietary accommodations. Taking the allegations as
true and drawing all reasonable inference in Plaintiff’s favor, as the Court must, Perez v.
Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (citation omitted), Plaintiff has sufficiently stated
an Eighth Amendment deliberate indifference claim against Phil Martin. It is possible
that the evidence will ultimately show that Martin was merely negligent, rather than
deliberately indifferent, in reviewing Plaintiff’s medical record. However, further factual
development is necessary to determine Martin’s state of mind. At this early stage of
litigation, Plaintiff has said enough to proceed on a claim against Martin.
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In conclusion, Plaintiff will be allowed to amend his complaint to add Phil Martin
and RN Stephens as Defendants, but not Dr. Babish or Rachel Dodd. This case will
proceed on the following claim:
Count 1: Eighth Amendment deliberate indifference claim against Phil
Martin, Justin Hill, and RN Stephens for refusing to provide and/or
thwarting Plaintiff’s access to a medically indicated diet.
The parties and the Court will use this designation in all future pleadings and
orders, unless otherwise directed by the Court. Any other claim that is mentioned in the
Complaint but not addressed in this Order should be considered dismissed without
prejudice as inadequately pled.3
CONCLUSION
Pursuant to Rule 15 and after review of the proposed Amended Complaint
under 28 U.S.C. § 1915A, Plaintiff’s motion for leave to file an amended complaint (Doc.
21) is GRANTED IN PART AND DENIED IN PART. Plaintiff’s “Motion for Emergency
Awareness” (Doc. 25) is GRANTED. The Clerk of Court is DIRECTED to:
•

Re-file Plaintiff’s motion for leave to file an amended complaint (Doc.
21) as the First Amended Complaint, with Plaintiff’s “Motion for
Emergency Awareness” (Doc. 25) as an attachment;

•

To reinstate P. Martin as a Defendant on the docket but to RENAME
him as Phil Martin;

•

To add RN Stephens to the docket as a Defendant;

•

To RENAME Defendant “Dietary Supervisor Hill” as “Justin Hill”; and

•

To prepare for Defendants RN Stephens and Phil Martin (1) Form 5

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.”).
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(Notice of a Lawsuit and Request to Waive Service of a Summons), and
(2) Form 6 (Waiver of Service of Summons), and to mail these forms,
along with a copy of this Order and the First Amended Complaint, to
Defendants Stephens and Martin in accordance with the service
procedures outlined in the Court’s original Merit Review Order (Doc.
13).
All Defendants shall timely file an appropriate responsive pleading to the Second
Amended Complaint and, pursuant to 42 U.S.C. § 1997e(g), shall not waive filing a reply.
Pursuant to Administrative Order No. 244, Defendants need only respond to the issues
stated in the original Merit Review Order (Doc. 7) and in this Merit Review Order.
In the event Defendants Stephens and Martin asserts failure to exhaust as an
affirmative defense to Count 1, their motion(s) for summary judgment on the issue of
exhaustion are due within sixty (60) days of filing their answer(s) to the First Amended
Complaint (see Doc. 26).
Finally, Plaintiff is once again reminded of his continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the Court
will not independently investigate his whereabouts. This shall be done in writing and not
later than 14 days after a transfer or other change in address occurs. Failure to comply
with this order will cause a delay in the transmission of court documents and may result
in dismissal of this action for want of prosecution. See Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
DATED: May 9, 2024
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

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